Addressing threats to health care's core values, especially those stemming from concentration and abuse of power. Advocating for accountability, integrity, transparency, honesty and ethics in leadership and governance of health care.

Tuesday, January 15, 2013

The recent tragic case of the suicide of Aaron Swartz raises many issues, and has inspired an outpouring of news coverage and internet discussion. Yet one issue it should raise that has not received much notice so far is that of how individuals and top executives are treated differently before the law.

Summary of the Case

Aaron Swartz was a prodigy who developed helped develop the RSS system for disseminating updates on web-site contents, and who helped develop the Reddit web-site. He was an advocate for information freedom, and more broadly, according to Matt Stoller, "a political activist interested in health care, financial corruption, and the drug war." Furthermore, he "recognized that politics is a corrupt money driven system, but also that it could be cracked if you spent the time to understand the moving parts."

Although apparently very well known among internet activists and computer scientists, Mr Swartz did not attract a lot of mainstream media attention, at least until 2011 when he was arrested "on a series of felony counts including wire fraud, computer fraud,
unlawfully obtaining information from a protected computer and
recklessly damaging a protected computer," according to the New York Times. His alleged crime was that he downloaded thousands of scientific scholarly articles from the site JSTOR, and was accused of intending to make them publicly available for free. Note that the articles were already publicly available, but only online through expensive subscriptions. At the time, the US Department of Justice took this to be a very serious crime:

'Stealing is stealing, whether you use a computer command or a crowbar,
and whether you take documents, data or dollars,' the United States
attorney for Massachusetts, Carmen M. Ortiz, said last week in a
statement about the case. 'It is equally harmful to the victim whether
you sell what you have stolen or give it away.'

The charges Ms Ortiz filed lead to Mr Swartz's arrest

on a series of felony counts including wire fraud, computer fraud,
unlawfully obtaining information from a protected computer and
recklessly damaging a protected computer. If convicted on all counts,
the Justice Department said he could face up to 35 years in prison and
$1 million in fines.

Yet Mr Swartz certainly was not accused of either violence or of planning to personally profit from his alleged crimes. At the time of his arrest, the severity of the allegations baffled many:

'This makes no sense,' said David Segal, executive director of Demand
Progress, an organization Mr. Swartz founded to rally support online for
an open Internet. 'It’s like trying to put someone in jail for
allegedly checking too many books out of the library.'

JSTOR got the hard drives that contained the articles in question back from Mr Swartz, and planned no further action:

Asked if it was pleased that someone misusing the service could be
brought to justice, a spokeswoman for Jstor wrote in an e-mail response: 'We wanted the content back, and we were able to secure it and ensure
it wasn’t distributed. We were not interested in further legal action
around this incident. We have no comment on the prosecution or how they
have chosen to characterize it.'

Since 2011 the case got little notice until Mr Swartz ended his own life this month. After his death, his family and partner issued a statement, as reported by the Guardian:

In a statement released late Saturday, Swartz's parents, Robert and Susan, siblings Noah and Ben and partner Taren Stinebrickner-Kauffman said the Redditt
builder's demise was not just a 'personal tragedy' but 'the product of a
criminal justice system rife with intimidation and prosecutorial
overreach'.

They also attacked the Massachusetts Institute of
Technology (MIT) for not supporting the internet activist in his legal
battles and refusing to stand up for 'its own community's most cherished
principles'.

And according to the New York Times (via CNBC), Harvard Professor Larry Lessig, Director of the Safra Center for Ethics, where Swartz had been a fellow protested

the idea that he could have seen serious prison time was infuriating.
Lawrence Lessig, the Harvard Law professor who founded Creative Commons
to advocate greater sharing of creative material online, called the
prosecution's case absurd and said that boxing in Mr. Swartz with an
aggressive case and little ability to mount a defense ''made it make
sense to this brilliant but troubled boy to end it.'

The Daily Beast just ran a story that suggests that Swartz should have known better to have done something that would have attracted the wrath of one of the toughest federal prosecutors, but one who is also a "liberal's dream." It opened its piece on US Attorney Carmen Ortiz thus:

Until she was accused of driving the 26-year-old cyber wunderkind and public-access activist Aaron Swartz to suicide, the top federal prosecutor in Massachusetts was a liberal’s dream.

Not for nothing was United States Attorney Carmen Ortiz championed by
the late Sen. Edward Kennedy and appointed by President Obama nearly
four years ago.

Then, it suggested how tough Ms Ortiz really is:

She is Hispanic and was raised in a
New York housing project, and after her husband died of cancer she
raised two daughters on her own. She has taken on political corruption,
and she has been so aggressive against white-collar crime that her
office collected more in forfeitures and fines than any other
jurisdiction in the country.

Her avowed motive in becoming a prosecutor was because 'there’s a greater chance for justice.'

that is a pretty amazing summary. However, it seems decidedly at odds with Ms Ortiz's record dealing with misdeeds by health care corporations, as discussed on Health Care Renewal. Ms Ortiz, whose harsh views of Swartz appear above, has been quoted at least three times about three different cases on this blog. In all instances, her quotes were in the context of legal settlements she made with large health care corporations.

Forest Pharmaceuticals

In September, 2010, how Ms Ortiz led the pursuit of a settlement with Forest Pharmaceuticals became apparent (look here). The company was accused of promoting its anti-depressant Celexa for use in adolescents and children. Such drugs have since been shown to increase the risk of suicide by such young patients, and this drug was only approved for adults. At the time, Ms Ortiz said, "Forest Pharmaceuticals deliberately chose to pursue corporate profits over its obligations to the F.D.A. and the American public." Although the offense may have lead to use of the drug by many adolescents and children, and hence may have lead to some of them attempting or committing suicide, the case was settled only with fines. As is usual in such legal settlements, no individual corporate executive who authorized or lead the off-label and potentially dangerous marketing of the drug was arrested, or accused, and none suffered any negative consequences.

GlaxoSmithKline

In October, 2010, how Ms Ortiz led the pursuit of a settlement with GlaxoSmithKline became apparent (look here.) The company was accused of selling drugs that were not what they appeared to be, apparently because the wrong drugs were put in labelled containers. Obviously, taking one drug, like Paxil, GSK's anti-depressant which has a number of known adverse effects, including suicide risk for adolescents and children as noted above, when a patient is supposed to be taking a wholly different drug could lead to patient harm. At that time, Ms Ortiz said, "We will not tolerate corporate attempts to profit at the expense of the
ill and needy in our society -- or those who cut corners that result in
potentially dangerous consequences to consumers." Again, while the settlement involved a guilty plea by a GSK subsidiary, again no individual corporate executive who had authority over the drug manufacturing was arrested or accused, much less suffered any negative consequences.

St Jude Medical

In January, 2011, Ms Ortiz led the pursuit of a settlement with St Jude Medical (look here). The company was accused of paying kickbacks to doctors to implant its cardiac defibrillators (ICDs) and pacemakers. Obviously, providing kickbacks to doctors may have lead them to plant devices in patients who did not really need them, yet the devices and the implantation procedures can have adverse effects. At that time, Ms Ortiz said, "The United States alleges that St Jude solicited physicians for the
studies in order to retain their business and/or convert their business
from a competitor's product." Again, as is usual, the settlement did not require any executive who authorized or directed the activities leading to the kickbacks suffered any negative consequences.

So in summary, in three major cases involving unethical practices by big health care corporations that could have put patients at risk, US Attorney Carmen Ortiz provided strong words, but did not apparently seek any punishment of any form of any of the corporate leaders who authorized or directed the bad, and potentially dangerous behavior. Yet in the sorry case of Aaron Swartz, Ms Ortiz charged a gifted computer activist whose alleged crimes certainly did not put any individuals at risk of adverse medical effects or any bad physical outcomes with crimes that if proven would have lead to years in jail and millions in fines for him as an individual.

Equal Justice Under the Law?

So it seems ironic, or worse, that the main narrative of the Swartz case has become: well meaning but reckless hacker versus implacably tough law enforcer. As noted above, Ms Ortiz's office appeared anything but tough when dealing with misdeeds by big pharmaceutical and device companies. So the real question is why she went after Mr Swartz so relentlessly, when his alleged crime was non-violent and physically hurt nobody, when she failed to pursue corporate executives who enriched themselves while leading companies whose unethical practices likely harmed a lot of patients.

In that light, the dark imaginings of Matt Stoller do not seem so far-fetched. On Naked Capitalism he wrote,

As we think about what happened to Aaron, we need to recognize that it
was not just prosecutorial overreach that killed him. That’s too easy,
because that implies it’s one bad apple. We know that’s not true. What
killed him was corruption. Corruption isn’t just people profiting from
betraying the public interest. It’s also people being punished for
upholding the public interest. In our institutions of power, when you do
the right thing and challenge abusive power, you end up destroying a
job prospect, an economic opportunity, a political or social connection,
or an opportunity for media. Or if you are truly dangerous and
brilliantly subversive, as Aaron was, you are bankrupted and destroyed.

I did not know Aaron Swartz, but am very sorry that we have lost someone so intelligent and imaginative. I hope one question that his untimely death raises is what has become of the idea of equal justice under the law, and how its apparent demise has enabled the dysfunction of our health care system, and our whole society.

13 comments:

First and foremost we must extend our deepest sympathies to all those who knew Mr. Swartz. People such as this represent the true wealth of America, vision and innovation have been our county’s strength since the days of our founding fathers.

Second, I am troubled that this event occurred against the back drop of the sale of a failed business by a high profile politician. A politician who used his position and intimidation to not only keep this business alive, but to secure financial gain far and above the value of the asset sold.

When politicians are allowed to push their agenda while silencing detractors, in this case driving them to take their own life, we have corruption at a level not imaginable by even those involved in robbery or other criminal activity.

We have produced a corrupt political class that uses its positions for political gain that far exceeds the scope envisioned by those electing them to office. Intimidation appears to be the coin of the realm and the use of other people’s assets appear to be their weapon.

Ortiz similarly failed to prosecute Medtronic for its egregious efforts to promote the Infuse Bone Graft. Medtronic paid tens of millions to a group of surgeons who then published studies that concealed the risks and failed to disclose the financial relationship. Her office declined to prosecute anyone at all:

So in summary, in three major cases involving ILLEGAL practices by big health care corporations that DID put patients at risk, US Attorney Carmen Ortiz provided strong words, but did not apparently seek any punishment of any form of any of the corporate leaders who authorized or directed the ILLEGAL, and ACTUALLY dangerous behavior.

"Again, while the settlement involved a guilty plea by a GSK subsidiary, again no individual corporate executive who had authority over the drug manufacturing was arrested or accused, much less suffered any negative consequences."

Corporate executives change. And those involved in the actual case might not be there by the time of the settlement.

If GSK goes separate ways with executives and managers involved in a case, should their replacements be locked up, even though they might not be involved? And if GSK does not separate itself from the people involved, would they not be attacked for not reacting to the problem?

And that's because the blog article does not provide any information whether said corporate leaders were actually with the company at the time of the settlement. Often, when such incidents become known, those responsible and the company go separate ways. But the COMPANY is legally responsible for the product - so those corporate leaders dealing with the case might not be the ones who caused the problem. They are responsible as corporate leaders, but cannot be personally liable because they did not fail to fulfill their obligations. On the other hand, the ones that did so, having left the company, might not be involved in the case at all.

Your points do not seem very relevant, since no executives, no company employees, employed at any time, had to make any monetary settlements, or were ever accused of any offense in any of the three major cases I cited.

By the way, it seems to me that if individual x had authorized, directed or implemented the particular behavior at issue in a particular case, whether or not that person was still with the company might affect the details of the settlement, but not that person's responsibility and whether he/ she should pay any penalty or suffer any consequences.

Leaving a company does not cancel all responsibility for actions taken when someone was with the company.

"...Leaving a company does not cancel all responsibility for actions taken when someone was with the company."

I would sure hope so, but in this weird place that America has today become, it wouldn't surprise me in the least that corporate lawyers have found ways to exempt corporate executives from accountability for their actions when running companies. This is what corruption looks like in today's world, where even in America the idea of liberty and justice for all is simply that, an idea, far from a living reality, and in fact a rather quaint historical footnote from that musty, now-enfeebled U.S. Constitution.

They have successfully gamed the system, and once again the whole stinking mess of modern capitalism is rife with corruption, reeks of the most base motives humans possess, is dedicated to turning natural resources into pollution to satisfy these craven desires, and is positively dangerous for the long-term health and well-being of our people and nation.

In short, this "economic system" is fatally, morally broken and must be stopped before it destroys us. And the task won't be easy, either for us individually, as it implies a much changed way of life, or collectively, with absolutely no political or moral leadership to guide us.

What about a civil lawsuit asking for damages from a previously employed executive who bore responsibility? For those companies that have had to pay out multimillion (or billion) dollar settlements, is there any legal precedent for shareholders of the company going after those individuals in civil court even if those executives are no longer employed by the company?

What a completely avoidable tragedy and egregious abuse of Governmental power. The "Justice" system is truly broken when someone like Aaron is hounded to his death and young men are put in prison for life for possession of a few grams of unapproved drugs.Meanwhile large scale theft perpetrated by the likes of Jon Corzine and Goldman Sachs is rewarded through billion dollar bonuses.

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